States with recent education choice lawsuits involving EdChoice Legal Advocates and the Institute for Justice.
As education choice options expand for families across the nation, opponents are stepping up their fight to preserve the status quo.
Observers say these conflicts are examples of growing pains that come when a society undergoes transformational change.
“It’s just part of the cost of doing business,” said Michael Q. McShane, director of national research at EdChoice, a national nonprofit think tank. “Educators are not alone in challenging policies they don’t like. New laws get passed; people who can’t do things democratically try to do things through the courts.”
Michael B. Horn used a famous quote (often misattributed to Mohandas Gandhi) to describe the spate of lawsuits: “First they ignore you, then they laugh at you, then they fight you, then you win.”
“I think we’ve entered the fight stage,” said Horn, the co-founder, distinguished fellow, and chairman of the Clayton Christensen Institute and an author of several books on disruptive innovation. “Education choice has gotten big enough that the entrenched interests dedicated to preserving the status quo are starting to see it as a threat.”
Legal fights over education choice began in the 1800s when Catholic families opposed the Protestantism taught in public schools. In 1925, the U.S. Supreme Court ruled in Pierce v. Society of Sisters that parents had the right to put their children in private schools. In 2002, the high court issued another landmark decision, Zelman v. Simmons-Harris, which upheld an Ohio scholarship that allowed parents to spend the money on religious schools. The high court found that when the parent controls the expenditure, the state has no role in determining whether the parent will choose to use funding at a religious or secular school.
With the Zelman ruling settling that question, choice opponents began trying to insert race-based arguments using the language of state constitutions. Michael Bindas, a senior attorney at the Institute for Justice who argued the landmark case Carson v. Makin before the U.S. Supreme Court, outlined that shift in a paper published in the Syracuse Law Review. According to Bindas, common arguments center on education clauses requiring states to maintain uniform or common public school systems. Education choice opponents, he said, take that a step further and claim that private scholarship programs could upset racial balances that state constitutions require state governments to maintain. They also argue that the requirements that states maintain public school systems bar them from establishing concurrent private education choice programs. Lower court judges in Ohio and Utah recently cited this argument in striking down choice programs. Ohio plaintiffs also raised the issue of racial balance argument, which the judge rejected.
McShane and Horn say the spate of lawsuits won’t stop education choice programs from becoming the norm in public education. However, they will delay the transition.
“Yes, these cases are a headache and can delay implementation, but school choice has a good track record,” McShane said. “It will take numbers and time, and it’s going to tip over into a different mindset.”
Where things stand
Montana: Families are waiting on a judge to rule on a lawsuit brought by opponents of a 2024 education savings account program for students with special needs. Plaintiffs argue that the law allowing reimbursements for $6,800 per child violates several provisions of the state constitution and redirects tax dollars to private institutions at the expense of students with special needs who remain in public schools. The judge denied the plaintiff’s motion for a temporary halt to the program, allowing families to continue using their ESAs while the case is pending.
Ohio: The state has appealed a lower court’s ruling that declared the state’s $700 million Educational Choice Scholarship Program (EdChoice) unconstitutional. In siding with the coalition of school districts and other choice opponents, the judge said that the program was not a subsidy program, as the state argued, but a separate system of schools in violation of the state constitution. However, the judge rejected the plaintiffs’ argument that the program violated the state constitution’s education clause by creating racial imbalances in the district schools. The 10th District Court of Appeal is expected to hear the case in 2026.
Utah: Families are continuing to receive funds from the Utah Fits All scholarship program while a district court ruling in favor of a teachers union-backed lawsuit is under appeal to the state Supreme Court. A district judge ruled that the state constitution prevents lawmakers from using tax revenue to fund education programs other than public education, higher education, and services for people with disabilities. The judge rejected the state’s argument that it had met its funding obligations to public education and that nothing in the law prohibited it from funding a separate program to support families choosing private or home education.
Wyoming: Families seeking to use Steamboat Legacy Scholarship ESAs had to find other options for the 2025-26 school year after a trial judge blocked the state from distributing funds in July at the request of the Wyoming Education Association and other plaintiffs until the judge rules on their lawsuit against the program. The judge recently denied a motion by state officials and attorneys for two families to dismiss the lawsuit based on their argument that the plaintiffs lacked legal standing.
Missouri: Education choice advocates scored a win last month when a judge denied the teachers union’s request to freeze payments to the MOScholars K-12 scholarship program as their lawsuit continues. MOScholars began in 2021 as a tax credit program supported by private donors. Earlier this year, the state allocated $51 million to the program, prompting the Missouri Education Association to file the complaint, which contends that the allocation unconstitutionally diverts taxpayer funds to private schools.
Arkansas: The state’s Education Freedom Account program is being fought on two fronts. In June 2024, opponents sued in state court, arguing that the program illegally diverted tax dollars from the public school system to benefit private schools. The judge denied the state’s motion to dismiss the complaint, so state attorneys are appealing to the state Supreme Court.
The same plaintiffs filed another lawsuit a year later in U.S. District Court. It argues that the program violates the Establishment Clause of the First Amendment because “it aids in the establishment of religion” by providing state funding to private schools operated by religious organizations. The state refutes that by arguing that the money can go to schools representing a wide variety of faiths, as well as secular schools.
They also argue that the program violates the Equal Protection clause of the 14th Amendment because it discriminates against low-income families, families in rural areas where there are fewer private schools and students with disabilities, because private schools are exempt from the federal Individuals with Disabilities Education Act. The program is also discriminatory, according to the complaint, because private schools are not held to the same standards as public schools. The state attorney general has filed a motion to dismiss the case, arguing that the plaintiffs lack standing.
Kentucky: The Kentucky Supreme Court heard arguments on Sept. 11 about whether the state’s charter school funding law violates the state’s constitution. Charter schools have been legal in the Bluegrass State since 2017, but there was no state funding mechanism. Lawmakers passed House Bill 9, which allocated money to charter schools, which are publicly funded but independently managed. A trial court judge ruled in 2023 that the law violated the state constitutional ban on the use of tax dollars to support non-public education and the constitutional requirement for “an efficient system of common schools.”
If education freedom were a hockey game, Florida just scored a Texas hat trick.
For the fourth consecutive year, Florida was ranked the No. 1 state for education freedom for K-12 students and families in The Heritage Foundation’s annual Education Freedom Report Card. The 2025 Heritage rankings come after a landmark year of state legislative sessions that delivered wins for students and families.
Florida leaders credited the state’s ranking to policies that give parents control over their children’s education dollars, offering a plethora of choices, including a la carte courses provided by school districts and charter schools.
Florida Gov. Ron DeSantis signs HB 1, which offered families universal eligibility to Florida education choice scholarship programs.
“In Florida, we are committed to ensuring parents have the power to make the education decisions that are best for their child,” said Gov. Ron DeSantis, who in 2023 signed legislation that offered universal eligibility for K-12 state education choice scholarship programs that allow families to direct their dollars toward the best options for their children. “Florida offers a robust array of educational choices, which has solidified our state as a national leader in education freedom, parental power, and overall K-12 education.”
Commissioner of Education Anastasios Kamoutsas said earning the top ranking for four years affirms the state’s long-term commitment to families.
“Under Governor DeSantis’ leadership, Florida will continue honoring parents’ right to choose the best educational option for their child’s individualized needs. I am proud that Florida offers so many educational options that parents can have confidence in.”
Since the Education Freedom Report Card began in 2022, Florida has earned the top ranking every year. The report card uses five categories: school choice, transparency, regulatory freedom, civic education, and spending to rank states.
In addition to Florida receiving the overall top spot for Education Freedom, it also earned high rankings in the following categories:
Earlier this year, the Sunshine State also earned national recognition for putting dollars behind its policies. In January, the national advocacy group EdChoice put Florida first on its list of each state’s spending on education choice programs proportional to total education spending.
According to the EdChoice report, Florida became the first state to spend more than 10% of its combined private choice and public-school expenditures on its choice programs, rising from an 8% spending share in 2024.
Florida also reached a historic milestone when, for the first time, more than half of all K-12 students were enrolled in an educational choice option. During the 2023–24 school year, 1,794,697 students, out of the state’s approximately 3.5 million K-12 population, used a learning option other than their assigned district school.
The EdChoice blog recently delivered some good news, specifically that the number of students using private choice programs increased by 25% last year. In fact, if you cobble together some previous years' data from the EdChoice ABCs of School Choice reports, the trend looks like:
Overall, a doubling of private choice participation since Arizona and West Virginia adopted universal policies in 2022 is looking like a good start. It is worth keeping in mind that surveys show that parents prefer private schools at approximately four times the rate that they enroll in them, and there are many miles to go on that front. The new program in Texas and the federal tax credit will provide additional sources of growth in the years ahead.
Meanwhile, over at Charter Folk, the not-so-good news. Jed Wallace has a striking post on the bifurcation of American education. Disadvantaged students have suffered the lion’s share of the decline in achievement since the pandemic struck.
This is your author’s observation rather than Wallace’s, but authorities adopting policies that teens can readily interpret as “attending school is not terribly important” have extremely negative consequences on absenteeism. Moreover, as best your humble author can tell, the “plan” for the public schools to do anything about it involves aging/dropping the academically damaged students out of the system.
In any case, Wallace puts his hammer on the head of an important nail regarding different reactions across red and blue states:
“It comes down to a topic I have written about several times here, which is whether teacher unions think they have overplayed their hands since the pandemic.
“My answer has been that in red states the answer is undoubtedly yes. Teacher union recalcitrance since the pandemic has sparked the Republican party to embrace private school choice, and that is resulting in seismic change happening in those states.
“In blue contexts, though, I have said that it’s a very different story. Thus far, Dems’ calculation has been that their hold on power is so unquestioned in blue states that they don’t really need to pivot on issues. They’ll be able to keep winning without making any adjustment at all.”
Ohio State University political scientist Vladimir Kogan, in his book “No Adult Left Behind,” argues: “We need a public school system that serves students, but we have created one that is governed at the behest of adults. We should not be surprised when it puts the interests of those adults first.”
Wallace is, correctly, I fear, noting that the politics of blue states lend themselves to more of the same on K-12. Wallace notes that this means more of this in Illinois:
If spending $93,787 per student at a high school with 0% proficiency in reading to go along with 0% proficiency in math is not your personal cup of tea, you might want to consider moving out of Illinois. It does not seem likely that you could find such a thing in any of the nearby states, two of which offer their citizens universal access to private choice programs:
Federalism allows people of divergent views to effectuate different policy goals, a healthy design feature of the American Constitution. If your state uses their monopoly on force to require you to pay for the schools like those listed above, opting out sounds like a splendid idea. Finding yourself forced to pay for those schools is far more than anyone should tolerate. Finding oneself forced to pay for them and being required to send your children to them is far, far worse. Illinois policymakers would never inflict this on their own children but seem entirely content to do so on thousands of their fellow citizens.
Depeche Mode once sang about “the grabbing hands grab all they can” but the same song noted “everything counts in large amounts.” For example, within the lifetimes of many reading this post, Illinois will have gone from having twice as many seats in Congress as Florida, to half as many (see below).
Everything counts in large amounts, indeed. The grabbing hands will be grabbing all they can, but your interests, dear reader, lie in putting yourself beyond their reach.
During a 1916 football game between Georgia Tech and Cumberland, Georgia Tech coach John Heisman famously urged his players on to victory- “You're doing all right, team, we're ahead. But you just can't tell what those Cumberland players have up their sleeves. They may spring a surprise. Be alert, men! Hit 'em clean, but hit 'em hard!” Cumberland committed 15 turnovers in the game and had one of their players getting tackled for a six-yard loss on an attempt at an offensive rush declared their “play of the game.” Georgia Tech won the game 222 to 0.
This story has repeatedly come to mind repeatedly over the last decade while reading stories about the competition between surging Florida and floundering New York.
The New York Post reports that New York City Schools will spend $42,000 per student this year. Spending $840,000 on a classroom of 20 fourth graders might seem a bit pricey, especially given that judging on their 2024 NAEP performance, nine of them will be reading at “below basic.” New Yorkers must pay sky-high taxes to support the world’s most expensive illiteracy generator/job programs, which is one of the reasons so many New Yorkers keep becoming Floridians. Now, however, it isn’t just people and companies migrating from New York to Florida; New York’s Success Academy schools are also heading south.
Through the wizardry of Stanford’s Educational Opportunity Project graph generator, I’ve placed New York Success Academies (Marked 1-7) in the graph for the overall state of Florida for academic proficiency. Schools are dots; green dots are higher than average, blue below average, etc.
You don’t see many high-poverty schools (graph runs from low poverty on the right to high poverty on the left) with students scoring 3ish grade levels above average, but that is exactly what Success Academy has consistently delivered in New York.
Being a rational human, you might think that New York policymakers would be falling over themselves to get as many Success Academies operating as possible, but that is just you being silly again. New York lawmakers maintain a statewide cap on the number of charter schools. Apparently, New York lawmakers feel the need to keep safe from, well, learning.
Florida, on the other hand, does not have a cap on charter schools. Rather than treating highly successful schools specializing in educating disadvantaged students as a public menace, Florida is rolling out the red carpet for highly effective school models. Success Academy plans to open 40 schools in Florida over the next 10 years, something which New York law prohibits.
Is it too much? Too much winning? No, Florida, you have to win more! Or to paraphrase Coach Heisman “You're doing all right, Florida; you’re ahead. But you just can't tell what those New Yorkers have up their sleeves. They may spring a surprise. Be alert, men! Hit 'em clean, but hit 'em hard!” Capitalizing on the abject folly of New York policymakers is hitting both clean and hard.
Choice opponents have been known to throw contradictory arguments out against private choice programs. One moment they will claim that the majority of kids using universal choice programs were already going to private schools. A few moments later they will claim such programs are draining district schools of students and money. The irony of these mutually exclusive claims will often escape the person making them, and you can see hints of both in this New York Times podcast titled Why So Many Parents are Opting Out of Public Schools.
Sigh
Choice opponents make all kinds of claims, but not many can withstand even a modicum of scrutiny. Let’s take for instance a widely repeated fable- that Arizona’s universal ESA program has “busted” the state budget.
If you actually examine state reports like this one for district and charter funding and also this one for ESA funding, you wind up with:
Arizona districts have exclusive access to local funding among other things and are by far the most generously funded K-12 system in the state. Districts, charters and ESAs all use the state’s weighted student funding formula, and ESAs get the lowest average funding despite having a higher percentage of students with disabilities participating than either the district or charter sector.
If you track the percentage of students served by the district, charter and ESA sectors respectively, and the funding used by each as a percentage of the total, you get:
So, there you have it; supposedly the sector educating 6% of Arizona students for 4% of the total K-12 funding is “bankrupting” the state of Arizona. Meanwhile the system, which generated an average of $321,700 for a classroom of 20 ($16,085*20), is “underfunded.”
A group of 20 ESA students receiving the average scholarship amount receive $123,780 less funding, but they are (somehow) “busting the budget.” The fact that a growing number of Arizona students opt for a below $10k ESA rather than an above $16k district education tells us something about how poorly districts utilize their resources. So does the NAEP.
There is a school sector weighing heavily upon Arizona taxpayers, but it is not the ESA program.
Berkeley law professors Jack Coons (left) and Stephen Sugarman described what we now call education savings accounts - and a system of à la carte learning - in their 1978 book, “Education by Choice.”
John E. Coons was ahead of his time.
Decades before the term “education savings account” became an integral part of the education choice movement, the law professor at the
Jack Coons, pictured here, co-authored "Education by Choice" in 1978 with fellow Berkeley law professor Stephen Sugarman.
University of California, Berkeley, and his former student, Stephen Sugarman, were talking about the concept. In their 1978 book, “Education by Choice: The Case for Family Control,” the two civil rights icons envisioned a model drastically different from the traditional one-size-fits-all, ZIP code-based school system inspired by the industrial revolution:
“To us, a more attractive idea is matching up a child and a series of individual instructors who operate independently from one another. Studying reading in the morning at Ms. Kay’s house, spending two afternoons a week learning a foreign language in Mr. Buxbaum’s electronic laboratory, and going on nature walks and playing tennis the other afternoons under the direction of Mr. Phillips could be a rich package for a ten-year-old. Aside from the educational broker or clearing house which, for a small fee (payable out of the grant to the family), would link these teachers and children, Kay, Buxbaum, and Phillips need have no organizational ties with one another. Nor would all children studying with Kay need to spend time with Buxbaum and Phillips; instead, some would do math with Mr. Feller or animal care with Mr. Vetter.”
Coons and Sugarman also predicted charter schools, microschools, learning pods and education navigators, although they called them by different names.
Fast forward to Florida today, where the Personalized Education Program, or PEP, allows parents to direct education savings accounts of about $8,000 per student to customize their children’s learning. Parents can use the funds for part-time public or private school tuition, curriculum, a la carte providers, and other approved educational expenses. PEP, which the legislature passed in 2023 as part of House Bill 1, is the state’s second education savings account program; the first was the Gardiner Scholarship, now called the Florida Family Empowerment Scholarship for students with Unique Abilities, which was passed in 2014.
Coons, who turned 96 on Aug. 23, has been a regular contributor to Step Up For Students' policy blogs over the years. Shortly after the release of his 2021 book, “School Choice and Human Good,” he was featured in a podcastED interview hosted by Doug Tuthill, chief vision officer and past president of Step Up For Students.
“It is wrong to fight against (choice) on the grounds that it is a right-wing conspiracy,” said Coons, a lifelong Catholic whom some education observers describe as “voucher left.” “It’s a conspiracy to help ordinary poor people to live their lives with respect.”
In 2018, Coons marked the 40th anniversary of “Education by Choice” by reflecting on it and his other writings for NextSteps blog.
He said he hopes his work will “broaden the conversation” about the nature and meaning of the authority of all parents to direct their children’s education, regardless of income.
“Steve (Sugarman) and I recognized all parents – not just the rich – as manifestly the most humane and efficient locus of power,” he wrote. “The state has long chosen to respect that reality for those who can afford to choose for their child. ‘Education by Choice’ provided practical models for recognizing that hallowed principle in practice for the education of all children. It has, I think, been a useful instrument for widening and informing the audience and the gladiators in the coming seasons of political combat.”
Florida gives parents the ability to direct the education of their children. Today about half of all K-12 students in the state attend a school of choice, and 500,000 students participate in state educational choice scholarship programs.
Gov. Ron DeSantis accelerated these trends in 2023, when he signed HB 1 and made every student eligible for a scholarship. No school can take any student for granted, and state funding follows students to the learning options they choose.
Unfortunately, misleading claims amplified in the media have blamed this expansion of parental choice for school districts’ budget challenges.
Sarasota County Schools, for example, recently estimated that scholarships “siphoned” $45 million from its budget, a figure cited in a WUSF article. In reality, most of the $45 million represents funding for students that Sarasota was never responsible for educating, such as those already in private schools, homeschooling or charter schools. It also does not account for students who return to district schools after using a scholarship. Once those factors are considered, the actual impact is considerably smaller than the headline number suggests.
For the 2024-25 school year, Sarasota County lost just 330 public school students to scholarship programs, but only 245 of those students came from district-run public schools. If those students had stayed, they would have brought the district about $2 million, not $45 million. That figure still does not account for the students who returned to district schools after using a scholarship the prior year, so the real impact would be smaller.
Other districts have been vocal about their budget difficulties, often attributing them solely to growing scholarship demand, such as Leon County Public Schools, which in 2024-25 lost 240 students from district-run schools (0.8% of enrollment), and Duval County Public Schools, which lost 1,237 students (1.2% of enrollment).
Statewide, 32,284 students left public schools in 2024-25 to use a scholarship. That is only 1.1% of all public-school students in Florida, and even that total includes those who previously attended charter schools, university-affiliated lab schools, virtual schools, and other public-school options.
Looking at district-run schools alone, just 24,874 new scholarship students left for scholarship programs in 2024-25. Another 5,507 came from charters, and 1,897 came from virtual schools. In fact, as a percentage of their total enrollment, charter schools lost more students to scholarship programs (1.4%) than district-run schools did (1%).
This means that the expanded scholarship program may be having a bigger impact on charter schools than districts. Charter schools, however, haven’t been as vocal about vouchers, and that is likely because charters continue to grow enrollment while district schools have started to shrink.
Enrollment declines in some districts have been real, even if the blame on scholarships is misplaced.
Declining enrollment is being driven by parent preferences – but also by shifting demographics and the ebb of the post-Covid population boom. Florida is one of the few states where overall K-12 population is expected to continue growing, but the growth will be uneven, and every school will have to compete for students.
Even as they face intense competition and demographic headwinds, Florida’s charter schools have kept growing. Some innovative district leaders have signaled a willingness to hear the demand signals from parents and create new solutions to meet their needs.
Understanding what parents seek in private and charter schools, and how new public-school models can better meet those demands, would be a good place for districts to start.
Pre-K and Voluntary Pre-Kindergarten (VPK) have also been major feeders for Florida’s scholarship programs. In 2024-25, 53,825 new scholarship students came from pre-K — somewhere between one-third and nearly half of all VPK students statewide.
Public schools have limited Pre-K offerings. Statewide, there are less than one-third as many Pre-K students as kindergartners enrolled in public schools. Private schools, by contrast, have used it as a key pipeline to recruit future students.
Districts have other avenues to respond to changing parent demands. Since 2014, when the Family Empowerment Scholarship for Students with Unique Abilities (FES-UA) was introduced as the Personal Learning Scholarship Accounts, districts have been allowed to offer classes and services to scholarship students.
The passage of HB1 in 2023 transformed every state scholarship into an education savings account. K-12 families now have more flexibility to use scholarships for “a la carte learning,” in which they pick and choose from a variety of educational options. By offering part-time instruction, tutoring, therapy, and other services, districts can win back students and the associated funding. So far, 21 of Florida’s 67 districts have taken advantage of this opportunity, with 10 more in the pipeline.
Florida’s enrollment shifts are real, but data shows the “voucher drain” narrative overstates the impact. The real challenge for districts is not money being “siphoned;” it is families choosing other options. Districts that adapt and compete for students will keep both enrollment and funding – leaving students, families and taxpayers better off.
Recently, someone representing a state official responded to an Arizona media outlet inquiry about the Empowerment Scholarship 
Accounts program and referred to “tutoring and babysitting.” Consequently, Arizona’s school district industrial lobbying complex went predictably bananas, even though babysitting is not now, nor ever has been an allowable expense under the program. Even though the official has since clarified their statement to note that babysitting is not an allowable expense. Blah blah blah no age requirements for tutoring yadda yadda yadda (move on to the next manufactured outrage).
This is all to do about nothing, but it is worthwhile to pause a moment to note that tutoring centers with strong reputations do routinely hire high school students for tutoring positions. I am aware of this because two of my children tutored math as high school students, and one became an assistant center director as a high school student. The companies establish the mathematical abilities of tutors before hiring them by testing them and then give them established protocols to follow. If they prove ineffective, they lose customers. A great many Arizona high school students are not only completely capable of math tutoring, but I am also willing to wager that neither me nor m(any) of Arizona’s journalism community would fare well against them in a mathematics contest.
Now…about this babysitting business. The Arizona school district industrial lobbying complex and their oh-so-willing media dupes grousing about “babysitting” is too rich for words.
In the 2024 NAEP, 49% of Arizona fourth grade students attending district schools scored “below basic” in reading. I’m not sure what those students were doing over the past five years, but it did not seem to involve much, well, learning. If we break out Arizona district scores apart from the students attending charter schools, eighth grade reading looked like this in 2024:
Usual caveats apply (sampling, raw scores imperfect proxy for school quality etc.) but —cough — if anyone is engaged in babysitting, you don’t want to go searching for it in tutoring centers: Arizona school district reading scores seem to indicate that they have jumped into babysitting with both feet.
Speaking of tutoring math, NAEP also tests math. Perhaps things won’t look so bad for Arizona school districts if we examine the math scores. Or then again, maybe not:
So, there is a brisk trade in tutoring in Arizona, and we are in no position to turn up our noses at bright and capable high school tutors for younger students. As for babysitting, it seems to be in mass production in Arizona’s district schools.
**SPOILER ALERT! DO NOT READ IF YOU ARE UNDER THE AGE OF 8**
Western cultures, for some strange reason, involve rituals where we pretend that various “fairy creatures” exist, particularly with children: the Tooth Fairy, a jolly old elf with flying reindeer who brought me an awesome Big Wheel in 1973, egg and goody hiding rabbits, etc. When I became a parent, I played along with these rituals, but then at some point questioned why I was doing it. On the one hand, I didn’t want my children to be those killjoy types who went around bursting the bubbles of other kids. On the other hand, I did not want to train my children not to trust me. I decided to allow the “fun” to go on until they each reached a certain age, then to explain to them that these things are traditions and that it would be best to allow their friends to figure it out on their own.
So, dear reader, I assume that you have reached a certain age and that you are prepared to know the truth about the last fairy creature. Belief in this one tends to persist much longer than the others and is alas, more detrimental. Sorry to be a killjoy, but here goes:
Philosopher kings are not real.
This was my main thought upon reading Mike McShane’s recent entry in a debate about school choice regulation. Go read it. I’ll wait here.
Go on…
Okay, good. My favorite part involved the Gilded Age meat baron, but McShane made several crucial points. Local school boards, state governments and the federal government all regulate public schools in a very active fashion. I could produce multiple graphs from NAEP, PISA, etc., showing what a pig’s breakfast American academic achievement has become, but you have already seen them, so I will spare you. Why are American schools so wretched despite so much regulation? Oh well, that is simple: regulation is not made by philosopher-kings but rather by politics. Politics has an amazingly consistent record of fouling things up.
The philosopher-king fairies, invented by Plato, are a specially trained and educated aesthetic elite who, disinterested in fame or wealth, love only wisdom and justice. Having thus earned the right to rule over us lesser mortals, we proles should feel deferential and deeply grateful for their sacrifice. Again, sorry to burst your bubble, but these people do not exist in the real world. Out here in the real world, mere humans with all kinds of motivations (political and otherwise), limits to their knowledge, greed, stupidity and other normal human failings create regulations. Those of us fortunate enough to live in a democracy get the chance to throw the bums out when we’ve had enough. Just in case you haven’t noticed, a major subtext of politics these days involves bums that voters can’t throw out.
Politics, not philosopher-kings, runs regulation, and politics runs on self-interest far more than on benevolent technocratic wisdom. Choice programs must cope with powerful organized interests that yearn to use regulation as a tool to domesticate choice opportunities and find it in their self-interest to do so. The default position of choice supporters should therefore be to view the calls for regulation with a deep skepticism; it is not paranoia when people really are out to get you.
None of this is to say that it is possible to pass choice legislation without regulation; it is not. I am not aware of any program anywhere that operates without some degree of regulation. American parents, however, want a radically different K-12 system than the one government forces them to pay for (see above). The way forward is to allow families to partner with educators to sort through new schools and education methods. Heavily regulated choice systems might get to something close to the K-12 system parents want and deserve before the heat-death of the universe, but then again, they might not.
America’s founders fought a grueling war against the most powerful country in the world based upon what was then a radical idea, that people could live better without royalty to boss them around. The divine right of kings was another myth humanity needed to grow up and discard, and that should include philosopher-kings.
Last week, I had the opportunity to make a presentation about how lawmakers can support teachers who want to start their own schools. The four key features:
2. Formula funding/demand-driven funding: Whoever applies for a choice program should receive funding if eligible.
3. Avoidance of anti-competitive accreditation requirements: Don’t ask your startup schools to operate without funding from the choice program while incumbent/accredited schools receive choice funding.
4. Exempt private schools from municipal zoning: Old hat for charter schools, needed for private schools as well.
Florida is the only state your humble author is aware of that has taken all four of these steps. This makes Ron Matus’ new study "Going With Plan B” all the more important. Despite a statewide increase of 705 private schools, 41,000 Florida families applied for, received, and ultimately did not use an ESA. Matus surveyed thousands of these parents to learn why.
The lack of school space was the No. 1 reason Florida families found themselves as non-participants. Reasons two and three were related to costs, which can also be thought of as a supply issue.
The “Going with Plan B” study is very interesting and should be studied carefully by Florida policymakers. For now, however, let us focus on the other states with choice programs that lack the four critical elements listed above. If FLORIDA has a supply issue, your state, sitting at one out of four, or two out of four, should take note: It is likely to be even worse in a state near you.
